Informations – A district court may sua sponte amend a criminal information to convict a defendant on an attempt theory of the alleged offense even where attempt was never part of the original information, as, unlike an indictment, an information may be amended as long as it is amended before a verdict or finding, it does not charge an additional or different offense, and it does not prejudice a substantial right of the defendant
Jurisdiction – A district court has jurisdiction in a criminal case where the information alleges a violation of a federal crime regardless of whether the facts it alleges actually constitute a violation of said statute.
Defendant Samira Jabr drove cross-country from California to D.C. with the intent to meet then-president Donald Trump. She believed she was a victim of a conspiracy between law enforcement and various casinos she visited on her way to D.C. and felt compelled to inform the President face-to-face. Her GPS indicated she had arrived at the White House so she parked her car close by, scaled two fences, ran across a courtyard and up the stairs to the building she believed to be the White House, and attempted to open the locked door, at which point secret service arrested her at gunpoint. Much to her disappointment, she had run up to the doors of the Treasury Building, which is next to the White House.
Jabr was charged by information with entering and remaining in a restricted building or grounds (18 U.S.C. § 1752(a)(1)). The information specifically alleged that the building and grounds entered without lawful authority was “the White House Complex and United States Department of Treasury Building and Grounds.” The government, however, did not realize that the treasury building was outside the “white house grounds” for purposes of the statute. Because her conduct did not technically violate the statute she was charged under, she moved for a judgment of acquittal at her bench trial. She also argued that the district court lacked jurisdiction because the crime as charged in the information was not a crime under the statute.
The district court held it did have jurisdiction because the information charged a federal crime, which is the only jurisdictional requirement. The court agreed with Jabr that the government had not proven a completed violation of § 1752(a)(1) because she did not enter “the White House or its grounds.” The government, however, argued that the statute also criminalizes attempts and Jabr could still be found guilty of attempting to violate § 1752(a)(1). The district court agreed and found Jabr guilty of attempting to enter the White House or its grounds.
On appeal, the D.C. Circuit affirmed the district court’s findings and judgment. The Court held that the relevant jurisdictional inquiry is whether the information alleges a violation of a federal criminal statute, not whether the facts alleged are sufficient to establish such a violation. Since the information clearly charged Jabr with violating § 1752(a), the district court had jurisdiction. The Court further held that, if the information was defective for failing to charge every element of the offense, any defect was harmless.
Jabr also argued that the district court constructively amended the information impermissibly by convicting her of attempted entry onto the White House grounds when she was only charged with the completed crime. The Court disagreed, noting that the circumstances under which a charging document, e.g., an indictment or information, can be amended differ.
The Court held that the rules pertaining to constructive amendments or variances in indictments is not the same as that for an information. The government may change the information so long as certain requirements are met pursuant to Fed. R. Crim. P. 7(e): the amendment occurred before the verdict or finding, it did not charge an additional or different offense, and did not prejudice a substantial right of the defendant. The Court found all these requirements were met and the conviction for attempt could stand. The Court acknowledged that Rule 7(e) seemingly allows the prosecutor to amend an information with court approval, not for the court to amend the information sua sponte. The Court held that even if the district court had overstepped, any error in doing so was harmless.
Opinion for the Court by Chief Judge Srinivasan, joined by Wilkins and Silberman.
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